The defendant Nos.6 and 7 in O.S.No.252/2009

pending consideration before the Senior Civil Judge at

Nelamangala, have filed this writ petition aggrieved by the

order dated 16.11.2016, passed therein, by which, the

Trial Court answered issue No.5 in the negative.

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2.

The parties shall henceforth be referred to as

they were arrayed before the Trial Court.

3.

The suit in O.S.No.252/2009 was filed for a

declaration that the plaintiffs are the joint owners of the

suit schedule property along with the defendant Nos.1 to 5

and to declare that the unregistered General Power of

Attorney dated 30.05.2004 allegedly executed by the

defendant Nos.1 to 4 in favour of the defendant No.6 and

the consequent sale deed dated 30.06.2004 executed by

the defendant No.6 as null and void and not binding upon

the plaintiffs and consequentially for partition and separate

possession of the plaintiffs' 1/16^th share each in the suit

schedule properties.

4.

The defendant No.6 contested the suit and

claimed that the plaintiffs are not entitled to any share in

the suit schedule property. He further contended that the

plaintiffs have sought for the relief of declaration of the

sale deed as not binding upon them and therefore, they

were bound to pay the Court fees under Section 38 of the

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Karnataka Court Fees and Suits valuation Act, 1958

(henceforth referred to as 'Act' for short).

5.

Based on these rival contentions, the Trial

Court framed issues. One of the issues framed was

regarding the Court fee paid on the plaint, which read as

follows:

"Whether the defendants prove that the

suit is not properly valued and Court fee paid is

insufficient?"

6.

The Trial Court recorded the evidence of the

defendant No.7 and held that the suit was properly valued

under Section 35(2) of the Act and as the plaintiffs only

sought to avoid the sale deed in favour of the defendant

No.7, the question of valuing the suit under Section 38 of

the Act would not arise.

7.

Being aggrieved by the said finding, the

defendant Nos.6 and 7 have filed this writ petition.

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8.

The learned counsel for the defendant Nos.6

and 7 submitted that the effect of the relief would be that

the plaintiffs would not be bound by the sale deed and

therefore, they were bound to value the suit property

under Section 38 of the Act.

9.

Per contra, the learned counsel for the

plaintiffs submitted that the plaintiffs are not the

signatories to the power of attorney in favour of the

defendant Nos.1 to 4 and consequently, the sale deed

executed by the power of attorney of the defendant Nos.1

to 4 in respect of the suit property did not bind their

interest. He contended that the question of valuing the suit

under Section 38 of the Act would not arise as the plaintiffs

were not parties to the power of attorney and the

consequent sale deed. He further submitted that the

plaintiffs have contended that they are still in joint

possession and enjoyment of the suit property and

therefore, the valuation of the suit was proper and valid.

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10.

I have considered the submissions made by

the learned counsel for the parties.

11.

As rightly stated by the Trial Court, while

determining whether the suit is properly valued or not, it is

only the averments of the plaint that have to be

considered. In the case on hand, the plaintiffs have sought

for a declaration that the suit property is a joint family

property and that the plaintiffs and defendant Nos.1 to 5

have an undivided right, title and interest in the same.

They also sought for a declaration that the power of

attorney executed by the defendant Nos.1 to 4 and the

consequent sale in favour of defendant No.7 would not

bind them. They contend that they are in joint possession

and enjoyment of the suit property and therefore, the

plaint was properly valued under Section 35(2) of the Act.

There is no need to value the suit under Section 38 of the

Act as the plaintiffs were not signatories to the power of

attorney and the consequent sale deed. There is no error

committed by